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Sunday, April 28, 2013

The U.S. Committee of the Blue Shield met earlier this month in Washington, D.C. to discuss the impact on cultural heritage caused by Syria's armed conflict. The Blue Shield is paying close attention to the situation as wartime traffickers spill artifacts onto the black market and looters trade artifacts for guns.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Thursday, April 25, 2013

"The import restrictions are intended to reduce the incentive for pillage and illicit trafficking in cultural objects." That was the conclusion of the United States government on January 14, 2009 when it enacted protective import controls over endangered cultural property coming from China. Now the bilateral agreement, or Memorandum of Understanding (MoU), enacted between the two countries is up for renewal. The current MoU, authorized by the Convention on Cultural Property Implementation Act (CPIA), protects
archaeological material from the Paleolithic Period through the Tang
Dynasty as well as monumental sculpture and wall art older than 250 years.

The Cultural Property Advisory Committee (CPAC) meets next month at the U.S. State Department to listen to public comment. In anticipation of the meeting, individuals and groups have submitted written arguments for and against the MoU's renewal.

The Virginia Museum of Fine Arts writes that it "endorses the proposal to renew the
Memorandum of Understanding and particularly applauds the efforts of the
memorandum to enhance collaboration between China and the US in
understanding the culture of China and its artifacts of world
significance." The museum adds, "Our experience with the Palace Museum [Beijing] has been exceptional – collegial, collaborative, and open."

But Dan Monroe, Immediate Past President of the Association of Art Museum Directors (AAMD) and writing on behalf of the AAMD urges caution. He asks CPAC to

(1) carefully and thoroughly consider the impact of the current import ban on the protection of Chinese art and archaeological material; (2) reject any effort to extend the import ban to material created after the Tang Dynasty; and (3) assure that if the current import ban is extended the Chinese government will assure that it is vastly easier for American museums to arrange short and long-term loans from Chinese museums for purposes of exhibition, cultural exchange, and scholarship.

Monroe questions whether import restrictions have worked. "Speaking from an anecdotal perspective, it seems difficult to argue the current US Chinese import ban has achieved the requirements of the law—to wit, significantly reduced illicit trade or the destruction of archaeological sites." He writes, "The European and other markets for Chinese art and archaeological material covered by the current US import ban remain extremely active. It therefore seems very fair to argue the US import ban has done little or nothing to actually reduce illicit trade or protect Chinese archaeological sites."

Dr. Chen Shen, an archaeologist of Chinese prehistory and a senior
curator at Canada's Royal Ontario Museum, disagrees. "I observe that over the past five years, the looting and
trafficking of antiquities is slowing down, suggesting clearly the MOU
is having an effect," notes Dr. Shen. Writing about his first-hand experiences in the field during the last 15 years, he says:

Over
the years during my fieldwork I have observed looting situations. In
2001, during my Palaeolithic archaeology project in Shandong Province I
and my team were called to help with a selvage (sic) excavation. A few
tombs of Han Dynasty (206 BC – 220 AD) had been looted during a stormy
night. When we inspected the site the next day, it appeared to us that
these burials had already been looted many times before that night.... Ten
years later when my team worked in the field in Shanxi province, about
1000 miles away from the location above mentioned, we also encountered
looting activities nearby. The tombs that were looted date to 3000 –
2000 years old (the East Zhou period). Local authorities told me that
these--if excavated properly--would have been a very important
discovery, probably the largest scale ancient noble tombs for that
period ever known in this region. Sadly few have survived unlooted. I
must say, since I have worked in this region for ten years, that I have
seen few significant archaeological objects from this region.... It is
clear to me that the objects looted in 2011 could be much more
significant given the scale of noble tombs identified from lootings.

Terracotta Warriors (Photo Credit: Steffen82)

AAMD asked the Minneapolis Institute of Art to comment in light of the museum's recent experience with the China Terracotta Warriors exhibition. The MIA explains, "We ... respect the desire of the Chinese government to protect and preserve its cultural heritage, and so support the concept of the MOU, but with changes in Article II ...." Those changes would include quicker finalization of contracts and object lists, faster processing of passports, assistance with fulfilling the requirements for indemnity insurance, a decrease in premium shipping charges by China Air, simplification of the loan approval process, lengthening exhibition tour times from 52 weeks to up to 60 weeks, and greater availability of First Grade objects.

President Diane Penneys Edelman of the Lawyers' Committee for Cultural Heritage Preservation in her letter of support focuses on "the the ratification of multinational treaties and the creation of bilateral agreements with China as evidence that market countries have joined in a 'concerted international effort' to address the pillage of archaeological sites, both in China and throughout the world."

If the provisions of CCPIA had been followed scrupulously and faithfully, the present import restrictions on coins from China would not exist. It might seem expedient for CPAC to look only at the status quo and opt for an extension of the existing MOU as is, but that would merely perpetuate the extremely controversial and highly criticized action of five years ago. Is the committee of today really willing to rubberstamp the actions of that era? Those actions by ECA/CHC [U.S. State Department Bureau of Educational and Cultural Affairs/Cultural Heritage Center], that have been labeled “extralegal”, “arbitrary”, “capricious”, “secretive”, “disdainful”, “unbearable”, “immoral”, “lawless”, “subversive” and “absolutely unAmerican” ought to be examined under a strong light before they are routinely perpetuated by CPAC.

Private collector Alan F. Wurtzel adds, "I
believe that the current restrictions are not protecting the cultural
artifacts of China or any other country from being looted." He says that "today by
far the biggest market for Chinese tomb sculpture is in China" and argues that "Chinese tomb
sculpture is highly repetitive and there are often hundreds if not
thousands of examples of essentially the same image, many produced by
molds." Wurtzel concludes that "[t]he greatest impact of US import restrictions is to deny US
citizens the same opportunities as Chinese collectors and most of the
rest of the world from enjoying a marvelous artistic tradition that
helps to bind the US and China in a common pursuit of beauty and
culture...."

President Elizabeth Bartman on behalf of the Archaeological Institute of America's 110 societies and 225,000+ members, by contrast, supports the MoU renewal because of its protection for archaeological context:

As befits a country of the size and geographic diversity of China, the range of archaeological materials and artifacts is vast and ranges from rare jade jewelry to ordinary bronze cookware, from ceramics to textiles to metalwork to sculptures in terracotta and other materials. Many of these works come from tombs, which are by nature scattered in the rural countryside and not easily policed and protected. Their unauthorized removal by looting—which unrestricted imports encourage--is an incomparable loss for both the Chinese and the rest of the world; without systematic and documented excavation, we lose the context of these works and thus the ability to date them, to chart their typological development, and to understand their meaning. We lose potential information regarding trade, social structure (particularly the expression of status and power), attitudes towards death and burial, and daily life, among other topics.In recent years, Chinese archaeological works have come to be much better-known in the United States through a number of important exhibitions of newly-discovered worksorganized by the Chinese authorities.

CPAC meets between May 14 and May 17 to consider the matter. The public hearing will take place on May 14.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Tuesday, April 23, 2013

There is
sufficient anecdotal evidence to conclude that the illegal trade in cultural
property may constitute a source of funding for terrorist networks.*This judgment is tacitly acknowledged
by the Financial Action Task Force (FATF), an independent inter-governmental
organization that helps to identify, assess, and understand terrorist financing
(TF) and money laundering (ML).

In recommendations published earlier this year,FATF expressly takes into account
the illegal cultural property trade. Its2013
guidance reporttitled
"National Money Laundering and Terrorist Financing Risk Assessment"
describes categories that should be included when authorities assess terror
funding and money laundering risks. The report lists illicit trafficking of
cultural goods, counterfeiting of antiquities, and the illegal trade of
antiquities. The report also identifies art and antique dealers and auction
houses as businesses "that may be useful [to include] in building a list
of the ML/TF vulnerabilities that can be exploited in regulated entities."

FATF recommends that risk assessments focused on terrorist financing and money
laundering "should ultimately allow public authorities to make a judgment
on the levels of the risks and priorities for mitigating those risks."

One policy response that authorities might consider is the adoption of record
keeping laws that spotlight black market antiquities. Such laws would foster
transparency, helping to separate the legal cultural property trade from the
illegal trade and serving to identify potential ML/TF crimes. A proposal
describing these laws can be found in "Spotlighting
Black Market Antiquities with Record Keeping Laws."

This post is researched, written, and published on the blog Cultural Heritage
Lawyer Rick St. Hilaire atculturalheritagelawyer.blogspot.com.
Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney &
Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this
post is prohibited. CONTACT INFORMATION:www.culturalheritagelawyer.com

Wednesday, April 17, 2013

The U.S. Attorney in St. Louis today told the Eight Circuit Court of Appeals that negotiations have failed in the case of United States v. Mask of Ka Nefer Nefer. Federal authorities are attempting to seize and forfeit the mummy mask from the St. Louis Art Museum and hope to return it to Egypt.

The federal district court in St. Louis twice dismissed the case last year before prosecutors filed an appeal to the higher court. But prosecutors told the appeals court in a January 17, 2013 status report that negotiations might resolve the matter. "It is the hope of the parties that this meeting will result in the parties and the Republic of Egypt coming to terms that will settle this matter in its entirety, such that no further appellate proceedings will be required," the report explained.

Today's report, in contrast, closes the door on any negotiated settlement. It announces:

"In the interim between the United States’ last status report and the present date, the parties have continued to confer in good faith in an attempt to reach an amicable resolution of this case. Unfortunately, the parties’ attempts have so far been unsuccessful, and the United States no longer believes that a nonjudicial resolution of this case is likely in the foreseeable future."

The case will be placed back on the court docket and proceed to appellate litigation.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com Photo credit woofwoof.

Wednesday, April 10, 2013

Lawmakers in both the Senate and the House last month reintroduced bills to create the American Latino Museum. If passed, the museum's home would fall under the auspices of the Smithsonian Institution.

The identical bills (S. 568 and H.R. 1217) call for the creation of the museum within the Arts and Industries Building in Washington, DC.

This same legislation was not enacted during the 112th session.

Bob Memendez (D-NJ) is joined by nine other sponsors of the Senate bill, including Harry Reid (D-NV) and Marco Rubio (R-FL). The House bill is sponsored by Xavier Beccera (D-CA34) and by Ileana Ros-Lehtinen (R-FL27).

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Tuesday, April 9, 2013

Cultural property law is a fascinating and diverse field. Knowledge of this area of law is valuable to museum professionals, archaeologists, art historians, paleontologists, collectors, dealers, lawyers, and more. That is why three upcoming programs are worth exploring.

International Art & Cultural Heritage Law will be taught in Rome by Villanova Law's Diane Edelman. More information can be found here.

If staying stateside is more convenient, a intensive one week session on Cultural Property Law will be offered by yours truly at Plymouth State University in July. Register for the Heritage Studies course by clicking here.

In November 2013, the DePaul College of Law will host a symposium on the Repatriation of Archaeological and Ethnological Objects. More information can be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Friday, April 5, 2013

A federal grand jury on Wedesday charged four
defendants--Javier
Abanto-Sarmiento and Alfredo Abanto-Sarmiento of Trujillo, Peru and Cesar
Guarderas and Rosa Isabel Guarderas of West Valley City, Utah--with one count each of illegally
smuggling and transporting Peruvian artifacts. An indictment is not a
finding of guilt, and a defendant is presumed innocent unless proven guilty.An undercover Immigration and Customs Enforcement (ICE) Homeland Security
Investigations (HSI) agent cracked open the case last fall when he arranged the
purchases of a dozen illegal Peruvian artifacts totaling $23,000, according to
an amended complaint filed on March 25. The complaint explains that the
purchases uncovered an alleged conspiracy:

The smuggling charge in this case differs from U.S. v. Perez
where the defendant was found guilty of illegally importing artifacts from El
Salvador in violation of the Cultural Property Implementation Act's (CPIA) import controls. An April 3, 2013
HSI news release recites, "In 1997, the United States and Peru entered
into a bilateral agreement prohibiting the importation into the United States
of specific cultural property originating from Peru, including artifacts and ethnological
religious objects." But the cultural property import restriction on
Peruvian cultural heritage--put in place by a Memorandum of Understanding (MoU)
adopted pursuant to the CPIA--is not
alleged to have been violated. Prosecutors have not charged the defendants with
that section of 18 U.S.C. 545 that says "[w]hoever fraudulently or knowingly
imports or brings into the United States, any merchandise contrary to law"
is guilty of a crime. The current defendants instead are charged with knowingly and
willfully smuggling "merchandise which should have been invoiced, or did
make out or pass, or attempt to pass, through the customhouse any false,
forged, or fraudulent invoice, or other document, or paper ...." The indictment does not allege further specifics.The second count alleges a violation of the National Stolen Property Act, and states that the defendants "did transport, transmit and transfer in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud, and did aid and abet therein, in violation of 18 U.S.C. §§ 2314 and 2."

HSI cultural property cases often follow a pattern of "seize and send,"
whereby illegal cultural objects are seized by authorities and then sent back
to their country of origin without criminal prosecution in the United States of
the traffickers. In recent years, ICE's seize and send policy has repatriated
several art and artifacts to Peru, including in 2012, 2011, and 2010, and 2009. But it is not often that criminal charges are filed against alleged antiquities traffickers. That is why the Abanto-Sarmiento
case is worth watching.UPDATE January 10, 2014: The district court yesterday set a schedule in this case as follows: Pretrial Conference set for 1/26/2015. Jury Trial set for 2/9/2015. Pleadings due by 8/18/2014. Expert Discovery due by 10/9/2014. Fact Discovery due by 7/18/2014. Joinder of Parties due by 8/18/2014. In Limine Motions due by 12/15/2014. Dispositive Motions due by 10/14/2014. Pretrial Stipulation due by 12/29/2014.

This post is researched, written, and published on the blog Cultural Heritage
Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com.
Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney &
Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this
post is prohibited. CONTACT: www.culturalheritagelawyer.com.

Monday, April 1, 2013

Federal prosecutors have seized and petitioned to forfeit 14 crates of art allegedly used to launder money. In the case of U.S. v. Various Pieces of Artwork, U.S. Attorney Paul Fishman filed an in rem action in New Jersey federal district court on February 22, 2013 targeting 2,251 items, mostly photographs.

Between 2007 and 2012, the CEO of Green Diesel and Fuel Streamers and associates "fraudulently created and sold credits for renewable fuels that were never produced," declares the U.S. Attorney's forfeiture complaint. The parties "laundered the proceeds of their fraudulent activities by layering the proceeds through multiple bank accounts and by purchasing artwork, some of which was shipped to Newark, New Jersey, as part of an effort to hide the proceeds of the fraud and remove the proceeds from the United States ...."

The purchases totaled $18 million, say prosecutors, adding that "a substantial amount of artwork" was to be moved to Spain via the Netherlands after having been transported to Houston, Texas, and Newark, New Jersey.

Federal attorneys cite financial records showing
purchases from seven dealers and galleries, including Sotheby's,
Heritage Auction Galleries, and Swann Galleries. No wrongdoing is
alleged to have been committed by any sellers.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

2015 ABA Journal Blawg 100 Honoree

2014 ABA Journal Blawg 100 Honoree

2014 Daniel Webster International Lawyer of the Year award given to Rick St. Hilaire

"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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Rick St. Hilaire is among those featured in Josh Knelman's book, Hot Art

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